4620 Comp Plan Amendment - Property Rights ElementOrdinance No. 2021-4620
An Ordinance of the City of Sanford, Florida amending
the City of Sanford Comprehensive Plan, as previously
amended; providing for the enactment of a property
rights element with goals, objectives and policies;
providing for legislative findings and intent; providing for
severability; providing for a savings provision and
ratification of prior acts of the City; providing for
conflicts; codification and directions to the code codifier
and providing for the implementation of the statutory
State review process and an effective date.
Whereas, the City of Sanford has enacted its Comprehensive Plan in
accordance with the controlling provisions of State law which Comprehensive Plan has
successfully guided the City for many years; and
Whereas, the City of Sanford is committed to an ongoing and vibrant
comprehensive planning program which addresses the needs of the citizens of the City;
and
Whereas, Section 163.3167, Florida Statutes, part of Florida's Community
Planning Act, requires the City of Sanford to maintain a comprehensive plan to guide its
future development and growth; and
Whereas, the provisions of Section 163,3184, Florida Statutes, relate to the
process for the enactment of Comprehensive Plan amendments; and
Whereas, Florida's Community Planning Act was amended during the 2021
Legislative Session by the passage of Committee Substitute for Committee Substitute for
Committee Substitute for House Bill Number 59 (initially codified as Chapter Number
2021-195, Laws of Florida) to require every city and county within the State "to include in
its comprehensive plan a property rights element." (Section 163.3177(6)(i)1, Florida
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Statutes); and
Whereas, the City of Sanford is committed to open and transparent decision-
making, in all areas of City decision making, which is the best protection for property rights
and has long advocated for the rights of all people to contribute to City planning in that
engaged citizens improve their neighborhoods and the City as a whole; and
Whereas, the high quality of life of the citizens of the City of Sanford is
enhanced and protected, the high quality economic and natural environment of the City
is protected and the City, as a whole, is strengthened when City planning practices and
procedures engage the public as public participation leads to more thoughtful and
enduring planning; and
Whereas, the City of Sanford respects judicially acknowledged and
constitutionally protected private property rights; and
Whereas, the City's Planning and Zoning Commission recommended approval
of this Ordinance at its meeting of September 9, 2021; and
Whereas, the pertinent goals, objectives and policies of the Comprehensive
Plan support the approval of the amendment set forth in this Ordinance as well as the
controlling provisions of State law; and
Whereas, the City of Sanford has complied with all requirements and
procedures of Florida law in processing this amendment to the City of Sanford
Comprehensive Plan including, but not limited to, Section 163.3184, Florida Statutes, as
well as other controlling law; and
Whereas, the City Commission of the City of Sanford has the power and
authority to enact this Ordinance under the controlling provisions of State law such as, by
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way of example only, the provisions of Article VIII, Section 2 of the Constitution of the
State of Florida and the provisions of Chapter 163 and Chapter 166, Florida Statutes, and
the controlling case law of the State of Florida; and
Whereas, the City Commission of the City of Sanford is enacting this Ordinance
in order to protect the public health, safety and welfare.
Now, therefore, be in enacted by the People of the City of Sanford, Florida:
Section 1. Legislative Findings and Intent.
(a). The City Commission of the City of Sanford hereby adopts and incorporates
into this Ordinance the recitals (whereas clauses) to this Ordinance as well as City staff
report and City Commission agenda memorandum relating to this Ordinance as the
legislative findings of the City Commission.
(b). This Ordinance is internally consistent with the goals, objectives and
policies of the Comprehensive Plan of the City of Sanford.
(c). Section 187.201(14), Florida Statutes, (part of the State Comprehensive
Plan) provides as follows:
(14) PROPERTY RIGHTS.—
(a) Goal.—Florida shall protect private property rights and recognize the
existence of legitimate and often competing public and private interests in
land use regulations and other government action.
(b) Policies. -
1. Provide compensation, or other appropriate relief as provided by law,
to a landowner for any governmental action that is determined to be an
unreasonable exercise of the state's police power so as to constitute a
taking.
2. Determine compensation or other relief by judicial proceeding rather
than by administrative proceeding.
3. Encourage acquisition of lands by state or local government in cases
where regulation will severely limit practical use of real property.
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(d). Section 70.001 (1), Florida Statutes, from the Bert J. Harris, Jr., Private
Property Rights Protection Act states, in part, as follows:
The Legislature recognizes that some laws, regulations, and ordinances of
the state and political entities in the state, as applied, may inordinately
burden, restrict, or limit private property rights without amounting to a taking
under the State Constitution or the United States Constitution. The
Legislature determines that there is an important state interest in protecting
the interests of private property owners from such inordinate burdens.
Therefore, it is the intent of the Legislature that, as a separate and distinct
cause of action from the law of takings, the Legislature herein provides for
relief, or payment of compensation, when a new law, rule, regulation, or
ordinance of the state or a political entity in the state, as applied, unfairly
affects real property.
(e). Section 163.3161 (10), Florida Statutes, from the intent and purpose
section of the Community Planning Act provides as follows:
It is the intent of the Legislature that all governmental entities in this state
recognize and respect judicially acknowledged or constitutionally protected
private property rights. It is the intent of the Legislature that all rules,
ordinances, regulations, comprehensive plans and amendments thereto,
and programs adopted under the authority of this act must be developed,
promulgated, implemented, and applied with sensitivity for private property
rights and not be unduly restrictive, and property owners must be free from
actions by others which would harm their property or which would constitute
an inordinate burden on property rights as those terms are defined in s.
70.001(3)(e) and (f). Full and just compensation or other appropriate relief
must be provided to any property owner for a governmental action that is
determined to be an invalid exercise of the police power which constitutes
a taking, as provided by law. Any such relief must ultimately be determined
in a judicial action.
(f). Section 70.002, Florida Statutes, is entitled "Property Owner Bill of Rights"
and requires as follows:
Each county property appraiser office shall provide on its website a Property
Owner Bill of Rights. The purpose of the bill of rights is to identify certain
existing rights afforded to property owners but is not a comprehensive
guide. The Property Owner Bill of Rights does not create a civil cause of
action. The Property Owner Bill of Rights must state:
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This Bill of Rights does not represent all of your rights under Florida
law regarding your property and should not be viewed as a
comprehensive guide to property rights. This document does not
create a civil cause of action and neither expands nor limits any rights
or remedies provided under any other law. This document does not
replace the need to seek legal advice in matters relating to property
law. Laws relating to your rights are found in the State Constitution,
Florida Statutes, local ordinances, and court decisions. Your rights
and protections include:
1. The right to acquire, possess, and protect your property.
2. The right to use and enjoy your property.
3. The right to exclude others from your property.
4. The right to dispose of your property.
5. The right to due process.
6. The right to just compensation for property taken for a public
purpose.
7. The right to relief, or payment of compensation, when a new
law, rule, regulation, or ordinance of the state or a political entity
unfairly affects your property.
(g). The City Commission of the City of Sanford respects the private property
rights of the citizens of the City and has consistently encouraged citizen involvement in
the land use processes and procedures to including the enactment of Section 3.9 of the
City's Land Development Regulations which reads as follows:
Section 3.9. - Citizen awareness and participation plan (CAPP)
A. Applicability.
1 The following requirements apply in addition to any other notice
provisions required elsewhere in this Code. The administrative official may
require that, based upon the needs of the abutting communities or the City
as a result of generally accepted land use planning practices and principles
or to ensure full public participation in the planning and land use processes
of the City, an application for a change or modification of land use will
require a citizens awareness and participation plan (CAPP) This potential
requirement shall be applicable to development applications for
developments such as the following which list is provided for illustrative
purposes only and not as a limitation of the requirement:
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0 Planned developments;
0 Variances involving a nonresidential use;
0 Subdivision plans;
• Rezonings;
0 Amendments to the future land use map;
0 Other land use or development applications providing for a
modification of the existing land use.
2. These requirements apply in addition to any other notice provisions
required elsewhere in this Code.
3. The requirement of a CAPP is not intended to produce complete
consensus on all applications, but to encourage applicants to be good
neighbors and to allow for informed decision making and to maximize, to
the extent practicable, public participation in the planning and land use
processes of the City.
B. Purpose. The purpose of the requirement of a CAPP is, at a
minimum, to:
1. Further implement the public participation provisions of the City's
Comprehensive Plan.
2. Ensure that applicants pursue early and effective citizen participation
in conjunction with their applications, giving them the opportunity to
understand and mitigate any real or perceived impacts their application may
have on the community.
3. Ensure that citizens and property owners are provided with an
adequate opportunity to learn about applications that may affect them and
to work with applicants to resolve concerns at an early state of the process.
4. Facilitate ongoing communication between the applicant, interested
citizens and potentially affected property owners, City staff and elected
officials throughout the application review process.
C. Submittal requirements. The applicant may submit a CAPP and
begin implementation prior to formal application at the applicant's discretion.
This shall not occur until after the required pre -application conference or
consultation with the planning division has occurred and any applicable fees
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have been paid by the applicant.
At a minimum the CAPP shall include the following information:
1. Identification of the residents, property owners, interested parties,
political jurisdictions and public agencies that may be affected by the
proposed development and should be given notice of the CAPP meeting.
2. Description of how notification will be provided to those interested in
and potentially affected by the proposed development.
3. Description of how information will be provided to those interested
and potentially affected relative to the substance of the change, amendment
or proposed development for which approval is sought.
4. Description of the means by which, and with whom, an opportunity
will be provided to those interested or potentially affected to discuss the
proposal and express any concerns, issues, or problems well in advance of
the first public hearing.
5. The applicants schedule for completion of the CAPP,
6. The means by which the applicant will keep City officials informed on
the status of citizen participation efforts.
D. Target area for citizen notification. The level of citizen interest and
area of involvement will vary depending on the nature of the application and
the location of the proposed development. The target area for early
notification will be determined by the administrative official. At a minimum,
the target area shall include the following:
1. Property owners within 500 feet of the property proposed for
development.
2. The officers of any homeowners association or registered
neighborhood group within the public notice area as set forth in this section
or that may be impacted by the proposed development.
3. Any person or entity that may be impacted by the proposed
development as determined by the administrative official based upon sound
and generally accepted land use planning practices and principles.
4. Other interested parties who have requested to be placed on an
interested party's notification list maintained by the City.
5. A determination to provide notice in the context of the CAPP process
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shall not grant standing to any person for the purposes of subsequent legal
challenges or appeals.
E. CAPP report. When a CAPP is required, the applicant shall provide
a written report on the results of the citizen participation efforts prior to the
publication of the notice of public hearing. This report will be attached to the
City staffs public hearing report. The report shall, at a minimum, contain the
following information:
1. Details of techniques used to involve interested and potentially
affected parties, including:
a. Dates and locations of all meetings where citizens were invited to
discuss the applicant's proposal.
b. Content, dates mailed, and numbers of mailings, including letters,
meeting notices, newsletters and other publications.
C. Location of residents, property owners and interested parties who
received notices, newsletters, or other written materials.
d. The number and names of people that participated in the process.
2. A summary of concerns, issues and problems expressed during the
process and proposed methods of resolution, including by way of example
only:
a. The substance of the concerns, issues and problems.
b. The manner in which the applicant has addressed or intends to
address these concerns, issues and problems.
C. The concerns, issues and problems the applicant is unwilling or
unable to address and the basis and rationale of the applicant with regard
to each issue that has not been addresses.
(h). Additionally, the City Commission of the City of Sanford has enacted
Section 3.3 of the City's Land Development Regulations which provides as follows:
A. Applicability. The following shall apply to all proposed development
within the City.
1 . A preapplication conference is recommended prior to the submittal
of any development application.
2. Applications for conditional uses or variances for one and two family
dwellings shall not require preapplication conferences.
3. A preapplication conference shall be required prior to the submittal
of the following types of applications.
a. Conditional use.
b. Variance.
C. Planned development project.
d. Master plan.
e. Preliminary subdivision,
f. Minor subdivision.
B. Purpose. The purpose of the pre -application conference is to
acquaint the participants with the requirements of these land development
regulations and the views and concerns of the City prior to the submittal
of any formal application for development approval. Depending on the
scope of the proposed project, an applicant may meet with the
administrative official or his or her designee or with the development
review team. Comments made at the pre -application conference are
intended to provide guidance and are nonbinding on the formal review of
the development plans.
C. Submittal requirements. Prior to the pre -application conference, the
applicant shall provide the following information:
1. A description of the character, location and magnitude of the
proposed development.
2. A survey, preliminary site plan or copy of the plat of the parcel
proposed for development.
3. A written list of any deviations from the land development
regulations proposed by the applicant.
4. Any questions or concerns regarding the development review
process or the Land Development Regulations.
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(i). City staff has concluded that the amendment to the City's Comprehensive
Plan as set forth in this Ordinance are well founded and consistent with sound and
generally accepted practices and principles.
Section 2. New Property Rights Element; City Comprehensive Plan. A new
Property Rights Element of the Comprehensive Plan of the City of Sanford is created to
read as follows.
1:2
Preamble: Residents of the City of Sanford have chosen to live in the City and
often have bought a home, the most significant financial decision many people make,
and, oftentimes, have started a business in or are employed in the City. Decisions are
made because of issues that the City addresses such as like the condition of streets and
parks, the proximity to daily needs and community safety. Businesses locate in the City
for its resources. They care about human assets, like customers and workers. And
residents, businesses and property owners, alike, care about physical assets like public
infrastructure and the environment/natural resources available within the City.
Businesses rely on local government plans so they can count on these resources being
available. Real estate investors study City rules and regulations in order to make financial
plans and accurately evaluate investment opportunities. For investments in real estate to
have low risk, the City must protect and improve the quality of a community over time.
Land values reflect how desirable a community is in many ways. Regulating land use and
protecting property rights are not conflicting goals. Rather, local government rules and
regulations generally create value in property and bring stability to real estate markets
and the community values of a jurisdiction. Rules that benefit the public also protect
property rights. A local government's process for regulating land greatly impacts real
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estate markets and property rights. Transparency, predictability and reliability are
strategies for implementing land use rules and regulations in a way that benefits people
and respects property rights. Transparency means people can see and participate in
processes for developing rules and regulations, specifically, and all local decision-making
by the City, generally Predictability means a local government follows rules and
regulations that are clear and unambiguous as a result of professional drafting the
documents and civic -oriented public officials deliberating upon proposals which are
ultimately adopted or enacted. Real estate investors should be able to read rules and
regulations that are clear and understandable and be able to readily ascertain whether
local government will be likely to permit a development proposal. Residents should be
able to read rules and regulations and then know what kind of development will most
reasonably occur in their community. Reliability means a local government follows
through on its commitments. Local governments should make realistic plans and should
follow them. And, local governments should only change their plans and rules and
regulations after thorough consideration and broad as possible participation that would
have the most potential of leading to strong support or consensus. When a government
is reliable, people can make long-term investments in the community which is one key to
a successful local economy. The City is dedicated to attaining the most benefits from
sound planning for its citizens and those who own property and businesses within the
City.
Goal: The City of Sanford shall make planning and development decisions,
specifically, and all local decisionmaking by the City, -generally, with respect for private
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property rights and with respect for people's rights to participate in all City decisions that
affect their lives and property.
Objective 1: The City of Sanford shall respect judicially
acknowledged and constitutionally protected private property rights.
Policy 1.1 The City of Sanford shall consider in all of its decision-
making the right of a property owner to physically possess and control his, her or its
interests in the property including, but not limited to, rights arising from easements,
leases, or mineral rights.
Policy 1.2: The City of Sanford shall consider in all of its decision-
making the right of a property owner to use, maintain, develop and improve his, her or its
property for personal use or for the use of any other person, subject to state law and local
ordinances.
Policy 1.3: The City of Sanford shall consider in all of its decision-
making the right of the property owner to privacy and to exclude others from the property
to protect the owner's possessions and property.
Policy 1.4: The City of Sanford shall consider in all of its decision-
making the right of a property owner to dispose of his, her or its property through sale or
Med
Policy 1.5: The City of Sanford shall adhere to the rule of law in
making land use decisions, specifically, and all local decision-making by the CitV,
generally, whether legislative, administrative or quasi-judicial.
Policy 1.6: The City of Sanford's land development regulations
shall provide for applicable processes, procedures and standards to implement this
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Objective which shall include a pre -application process in which a property owner may
discuss existing real property rights and entitlements and the potential to modify or
implement such rights and entitlements. The pre -application process shall be consistently
evaluated to ensure that it is adequately serving the needs of those owning real property,
the citizens of the City of Sanford and the operational capacity and ability of City staff to
act in an administratively sound manner with regard to land use matters that may be
processed through the City of Sanford's decision-making processes of whatever type or
nature.
Objective 2: People have the right to participate in planning and
development decisions that affect their lives and property. The City of Sanford's decision-
making processes and procedures, of whatever type or nature, shall be transparent and
provide for adequate public notice to ensure that all people affected by the actions of the
City of Sanford in the context of the development process may reasonably participate in
decisions that affect their lives and property.
Policy 2.1: The City of Sanford recognizes that planning and
development decisions affect complex systems and have impacts that occur beyond the
site of development. Any affected person may participate, as is consistent with controlling
law, in and be a party to a hearing on a land use decision. Likewise, the general public
which may not have true legal standing under controlling law, shall have the right to
participate as is established under Florida law in addition to participation in the Citizen
awareness and participation plan (CAPP) process which shall be consistently evaluated
to ensure that it is adequately serving the needs of the citizens of the City of Sanford . To
that end, the City of Sanford shall ensure that any person who desires to receive notices
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of meetings of City of Sanford agendas relating to land use matters and decisions shall
be added to distribution lists such as email lists and that, upon request, that public records
are provided to apprise citizens of pending matters.
Policy 2.2: The City of Sanford recognizes that it should make
planning and development decisions in response to true and accurate information. The
City of Sanford shall, in accordance with controlling law, provide every affected person
an opportunity to be heard, to present and rebut evidence and to be informed of all
information on which the City of Sanford bases its decision all as is required under Florida
law.
Policy 2.3: The City of Sanford recognizes that a person cannot
participate in decisions about which they are unaware. The City of Sanford shall provide
notice as required by controlling law and shall adhere to a policy of open meetings and
freedom to review and copy public records which are bedrock principles of Florida law.
Policy 2.4: The City of Sanford recognizes that planning and
development decisions raise issues which the City of Sanford may not be capable of
adequately addressing in a single hearing and that the best decisions are made when
every affected person has the opportunity to participate early and throughout the decision-
making process. of whatever type or nature.
Policy 2.5: The City of Sanford's land development regulations
shall provide for applicable processes, procedures and standards to implement this
Objective.
Objective 3: People rely on the land use designations assigned to
real property under the provisions of the City's Comprehensive Plan and on the zoning
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districts or classifications assigned to properties when deciding how to use property. The
City of Sanford's decision-making processes. of whatever type or nature, shall be reliable
and predictable to promote sound, long-term investments in the community.
Policy 3.1: The City of Sanford shall respect the right of people,
including elected and appointed officials, citizens, and property owners, to fairly evaluate
all proposed decisions relating to real property and all other matters which may affect
their property rights.
Policy 3.2: The decision-making processes of the City of Sanford.,
of whatever type or nature, shall ensure that public meetings and public hearings afford
the right to participation by the public as a general matter and afford administrative due
process with regard to matters that are decided in the course of quasi-judicial hearing
processes and procedures.
Policy 3.3: The City of Sanford 's land development regulations
shall provide for applicable processes, procedures and standards to implement this
Objective.
Section 3. Implementing Administrative Actions.
The City Manager, or designee, is hereby authorized to implement the provisions
of this Ordinance as deemed appropriate and warranted.
Section 4. Savings Provision; Ratification of Prior Actions.
The prior actions of the City Commission and its agencies in enacting and causing
amendments to the Comprehensive Plan of the City of Sanford, as well as the
implementation thereof, are hereby ratified and affirmed.
Section 5. Severability.
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If any section, sentence, phrase, word, or portion of this Ordinance proves to be
invalid, unlawful or unconstitutional, it shall not be held to impair the validitrdinorce or
effect of any other action or part of this Ordinance.
Section 6. Conflicts.
All ordinances or parts of ordinances in conflict herewith are hereby repealed.
Section 7. Codification/instructions to Code Codifier.
It is the intention of the City Commission of the City of Sanford, Florida, and it is
hereby ordained that the provisions of this Ordinance shall become and be made a part
of the codified version of the City of Sanford Comprehensive Plan and/or the Code of
Ordinances of the City of Sanford, Florida in terms of adding a Property Rights Element.
Section 8. Effective Date.
The Comprehensive Plan amendment set forth herein shall not become effective,
in accordance with Section 163.3184(3), Florida Statutes, until 31 days after the State
land planning agency (Florida Department of Economic Opportunity) notifies the City that
the Comprehensive Plan amendment package is complete. If timely challenged, the
Comprehensive Plan amendment shall not become effective until the said State land
planning agency or the Administration Commission enters a final order determining the
adopted amendment to be in compliance.
Passed and adopted this 8th day of November, 2021.
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Attest:
Traci Houchin, MMC, FC
City Clerk
,glltjh
William L. Colbert, City Attorney
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City Commission of the City of
Sanford, Florida
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2 An act relating to growth management; amending s.
3 163.3167, F.S.; specifying requirements for certain
4 comprehensive plans effective, rather than adopted,
5 after a specified date and for associated land
6 development regulations; amending s. 163.3177, F.S.;
7 requiring local governments to include a property
8 rights element in their comprehensive plans; providing
9 a statement of rights which a local government may
10 use; requiring a local government to adopt a property
11 rights element by the earlier of its adoption of its
12 next proposed plan amendment initiated after a certain
13 date or the next scheduled evaluation and appraisal of
14 its comprehensive plan; prohibiting a local
15 government's property rights element from conflicting
16 with the statement of rights contained in the act;
17 amending s. 163.3237, F.S.; providing that the consent
18 of certain property owners is not required for
19 development agreement changes under certain
20 circumstances; providing an exception; amending s.
21 337.25, F.S.; requiring the Department of
22 Transportation to afford a right of first refusal to
23 certain individuals under specified circumstances;
24 providing requirements and procedures for the right of
25 first refusal; amending s. 380.06, F.S.; authorizing
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26 certain developments of regional impact agreements to
27 be amended under certain circumstances; providing
28 retroactive applicability; providing a declaration of
29 important state interest; providing an effective date.
30
31 Be It Enacted by the Legislature of the State of Florida:
32
33 Section 1. Subsection (3) of section 163.3167, Florida
34 Statutes, is amended to read:
35 163.3167 Scope of act. -
36 (3) A municipality established after the effective date of
37 this act shall, within 1 year after incorporation, establish a
38 local planning agency, pursuant to s. 163.3174, and prepare and
39 adopt a comprehensive plan of the type and in the manner set out
40 in this act within 3 years after the date of such incorporation.
41 A county comprehensive plan is controlling until the
42 municipality adopts a comprehensive plan in accordance with this
43 act. A comprehensive plan for a newly incorporated municipality
44 which becomes effective aid after January 1, 2016 2019, and
45 all land development regulations adopted to implement the
46 comprehensive plan must incorporate each development order
47 existing before the comprehensive plan's effective date, may not
48 impair the completion of a development in accordance with such
49 existing development order, and must vest the density and
50 intensity approved by such development order existing on the
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51 effective date of the comprehensive plan without limitation or
52 modification.
53 Section 2. Paragraph (i) is added to subsection (6) of
54 section 163.3177, Florida Statutes, to read:
55 163.3177 Required and optional elements of comprehensive
56 plan; studies and surveys. -
57 (6) In addition to the requirements of subsections (1)-
58 (5), the comprehensive plan shall include the following
59 elements:
60 (i)1. In accordance with the legislative intent expressed
61 in ss. 163.3161(10) and 187.101(3) that governmental entities
62 respect judicially acknowledged and constitutionally protected
63 private property rights, each local government shall include in
64 its comprehensive plan a property rights element to ensure that
65 private property rights are considered in local decisionmaking.
66 A local government may adopt its own property rights element or
67 use the following statement of rights:
68
69 The following rights shall be considered in local
70 decisionmaking:
71
72 1. The right of a property owner to physically
73possess and control his or her interests in the
74 property, including easements, leases, or mineral
75 rights.
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77 2. The right of a property owner to use, maintain,
78 develop, and improve his or her property for personal
79 use or for the use of any other person, subject to
80 state law and local ordinances.
81
82 3. The right of the property owner to privacy and to
83 exclude others from the property to protect the
84 owner's possessions and property.
85
86 4. The right of a property owner to dispose of his or
87 her property through sale or gift.
88
89 2. Each local government must adopt a property rights
90 element in its comprehensive plan by the earlier of the date of
91 its adoption of its next proposed plan amendment that is
92 initiated after July 1, 2021, or the date of the next scheduled
93 evaluation and appraisal of its comprehensive plan pursuant to
94 s. 163.3191. If a local government adopts its own property
95 rights element, the element may not conflict with the statement
96 of rights provided in subparagraph 1.
97 Section 3. Section 163.3237, Florida Statutes, is amended
98 to read:
99 163.3237 Amendment or cancellation of a development
100 agreement.—A development agreement may be amended or canceled by
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101 mutual consent of the parties to the agreement or by their
102 successors in interest. A party or its designated successor in
103 interest to a development agreement and a local government may
104 amend or cancel a development agreement without securing the
105 consent of other parcel owners whose property was originally
106 subject to the development agreement, unless the amendment or
107 cancellation directly modifies the allowable uses or
108 entitlements of such owners' property.
109 Section 4. Subsection (4) of section 337.25, Florida
110 Statutes, is amended to read:
ill 337.25 Acquisition, lease, and disposal of real and
112 personal property. -
113 (4) The department may convey, in the name of the state,
114 any land, building, or other property, real or personal, which
115 was acquired under subsection (1) and which the department has
116 determined is not needed for the construction, operation, and
117 maintenance of a transportation facility. When such a
118 determination has been made, property may be disposed of through
119 negotiations, sealed competitive bids, auctions, or any other
120 means the department deems to be in its best interest, with due
121 advertisement for property valued by the department at greater
122 than $10,000. A sale may not occur at a price less than the
123 department's current estimate of value, except as provided in
124 paragraphs (a) -(d). The department may afford a right of first
125 refusal to the local government or other political subdivision
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126 in the jurisdiction in which the parcel is situated, except in a
127 conveyance transacted under paragraph (a), paragraph (c), or
128 paragraph (e). Notwithstanding any provision of this section to
129 the contrary, before any conveyance under this subsection may be
130 made, except a conveyance under paragra h (a) or paragraph (c),
131 the department shall first afford a right of first refusal to
132 the previous property owner for the department's current
133 estimate of value of the property. The right of first refusal
134 must be made in writing and sent to the previous owner via
135 certified mail or hand delivery, effective upon receipt. The
136 right of first refusal must provide the previous owner with a
137 minimum of 30 days to exercise the right in writing and must be
138 sent to the originator of the offer by certified mail or hand
139 delivery, effective upon dispatch. If the previous owner
140 exercises his or her right of first refusal, the previous owner
141 has a minimum of 90 days to close on the property. The right of
142 first refusal set forth in this subsection may not be required
143 for the disposal of property acquired more than 10 years before
144 the date of disposition by the department.
145 (a) If the property has been donated to the state for
146 transportation purposes and a transportation facility has not
147 been constructed for at least 5 years, plans have not been
148 prepared for the construction of such facility, and the property
149 is not located in a transportation corridor, the governmental
150 entity may authorize reconveyance of the donated property for no
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151 consideration to the original donor or the donor's heirs,
152 successors, assigns, or representatives.
153 (b) If the property is to be used for a public purpose,
154 the property may be conveyed without consideration to a
155 governmental entity.
156 (c) If the property was originally acquired specifically
157 to provide replacement housing for persons displaced by
158 transportation projects, the department may negotiate for the
159 sale of such property as replacement housing. As compensation,
160 the state shall receive at least its investment in such property
161 or the department's current estimate of value, whichever is
162 lower. It is expressly intended that this benefit be extended
163 only to persons actually displaced by the project. Dispositions
164 to any other person must be for at least the department's
165 current estimate of value.
166 (d) If the department determines that the property
167 requires significant costs to be incurred or that continued
168 ownership of the property exposes the department to significant
169 liability risks, the department may use the projected
170 maintenance costs over the next 10 years to offset the
171 property's value in establishing a value for disposal of the
172 property, even if that value is zero.
173 (e) If, at the discretion of the department, a sale to a
174 person other than an abutting property owner would be
175 inequitable, the property may be sold to the abutting owner for
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176 the department's current estimate of value.
177 Section 5. Paragraph (d) of subsection (4) of section
178 380.06, Florida Statutes, is amended to read:
179 380.06 Developments of regional impact. -
180 (4) LOCAL GOVERNMENT DEVELOPMENT ORDER. -
181 (d) Any agreement entered into by the state land planning
182 agency, the developer, and the local government with respect to
183 an approved development of regional impact previously classified
184 as essentially built out, or any other official determination
185 that an approved development of regional impact is essentially
186 built out, remains valid unless it expired on or before April 6,
187 2018, and may be amended pursuant to the processes adopted by
188 the local government for amending development orders. Any such
189 agreement or amendment may authorize the developer to exchange
190 approved land uses, subject to demonstrating that the exchange
191 will not increase impacts to public facilities. This paragraph
192 applies to all such agreements and amendments effective on or
193 after April 6, 2018.
194 Section 6. The Legislature finds and declares that this
195 act fulfills an important state interest.
196 Section 7. This act shall take effect July 1, 2021.
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HOUSE OF REPRESENTATIVES STAFF FINAL BILL ANALYSIS
BILL #: CS/CS/CS/HB 59 Growth Management
SPONSOR(S): State Affairs Committee; Civil Justice & Property Rights Subcommittee; Local Administration &
Veterans Affairs Subcommittee; McClain and others
TIED BILLS: IDEWSIM. BILLS: CS/CS/CS/SB 496
FINAL HOUSE FLOOR ACTION: 82 Y's 32 N's GOVERNOR'S ACTION: Pending
SUMMARY ANALYSIS
CS/CS/CS/HB 59 passed the House on April 1, 2021, and subsequently passed the Senate on April 8, 2021.
To manage growth in Florida, certain statutory procedures and requirements have been put in place for state
agencies and local governments to follow and enforce.
The bill makes the following changes to growth management regulations:
• Requires the comprehensive plan for a newly incorporated municipality that becomes effective after
January 1, 2016, to incorporate all development orders existing before the plan's effective date, not to
impair the completion of development in accordance with existing development orders, and to vest the
density and intensity approved by the development orders existing before the plan's effective date
without limitation or modification;
• Requires local governments to include a private property rights element in their comprehensive plans
by specified dates and provides a model statement of rights that local governments may adopt;
• Allows the parties to a development agreement to amend or cancel the agreement without the consent
of other property owners whose property was originally subject to the agreement, unless the
amendment or cancellation would directly modify the allowable uses or entitlements of such owners'
property;
• Specifies that development agreements for certain developments of regional impact may be amended
using the processes adopted by local governments for amending development orders and specifies that
such amendment may authorize the developer to exchange approved land uses under certain
conditions; and
• Requires the Florida Department of Transportation, when selling property, to provide a right of first
refusal to the prior property owner in certain instances and provides a process for implementing this
right of first refusal.
The bill provides a declaration that the act fulfills an important state interest.
The bill does not have a fiscal impact on state government but may have an insignificant negative fiscal impact
on local governments.
Subject to the Governor's veto powers, the effective date of this bill is July 1, 2021.
This document does not reflect the intent or official position of the bill sponsor or House of Representatives.
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1. SUBSTANTIVE INFORMATION
A. EFFECT OF CHANGES:
Local Comprehensive Plans
Background
Private Property Rights
The "Bert Harris Jr., Private Property Rights Protection Act" (Harris Act) entitles private property owners
to relief when a specific action of a governmental entity inordinately burdens the owner's existing use,
or a vested right to a specific use, of real property.' The Harris Act recognizes that the inordinate
burden, restriction, or limitation on private property rights as applied may fall short of a taking under the
Florida Constitution or the United States Constitution and establishes a separate and distinct cause of
action for relief, or payment of compensation, when a new law, rule, or ordinance of the state or a
political entity in the state unfairly affects real property.2 The Harris Act applies generally to state and
local governments but not to the U.S. government, federal agencies, or state or local government
entities exercising formally delegated federal powers.3
An owner may also seek relief when a state or local governmental entity imposes a condition on the
proposed use of the real property that amounts to a prohibited exaction.4 A prohibited exaction occurs
when an imposed condition lacks an essential nexus to a legitimate public purpose and is not roughly
proportionate to the impacts of the proposed use that the governmental entity seeks to avoid, minimize,
or mitigate.'
The "Florida Land Use and Environmental Dispute Resolution Act" provides a non -judicial alternative
dispute resolution process for a property owner to request relief from a government entity's
development order or enforcement action when the order or action is unreasonable or unfairly burdens
6
the use of the owner's real property. Parties in pending judicial proceedings may agree to use this
process, if the court approves.'
State and Local Comprehensive Plans
Laws protecting private property rights are balanced against the state's need to effectively and
efficiently plan, coordinate, and deliver government services amid the state's continued growth and
development.8 The State Comprehensive Plan provides long-range policy guidance for the orderly
management of state growth,9 which must be consistent with the protection of private property rights.10
Local governments are required to adopt local comprehensive plans to manage the future growth of
their communities."
1 S. 70.001(2), F.S.
2 S. 70.001(1), F.S.
3 S. 70.001(3)(c), F.S.
4 S. 70.45(2), F.S.
5 S. 70.45(1)(c), F.S.
6 S. 70.51, F.S.
7 S. 70.51(29), F.S.
8 See s. 186.002(1)(b), F.S.
9 S. 187.101 (1), F.S.
10 S. 187.101(3), F.S. The plan's goals and policies must also be reasonably applied where they are economically and environmentally
feasible and not contrary to the public interest.
11 S. 163.3167(2), F.S.
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First adopted in 1975'2 and extensively expanded in 1985,13 Florida's comprehensive land planning
laws were significantly revised in 2011, becoming the Community Planning Act (CPA). 14 The CPA
directs how local governments create and adopt their local comprehensive plans. The CPA requires
that all governmental entities in the state recognize and respect judicially acknowledged or
constitutionally protected private property rights and exercise their authority without unduly restricting
private property rights, leaving property owners free from actions by others that would harm their
property or constitute an inordinate burden on property rights under the Harris Act. 15
Local Comprehensive Plan Elements
Local comprehensive plans must include principles, guidelines, standards, and strategies for orderly
and balanced future land development. A plan must reflect community commitments to implement the
plan 16 and identify procedures for monitoring, evaluating, and appraising its implementation. 17 A plan
may include optional elements,18 but must include the following elements:
• Capital improvements;"
• Future land use plan ;20
• Intergovernmental coordination ;21
• Conservation ;22
• Transportation ;21
• Sanitary sewer, solid waste, drainage, potable water, and aquifer recharge;'
• Recreation and open space ;21
• Housing ;21 and
• Coastal management (for coastal local governments).27
Counties and municipalities may employ individual comprehensive plans or joint plans (if both entities
agree such a plan would align with their common interests) .28 A county plan controls in a municipality
until a municipal comprehensive plan is adopted .21 New municipalities must adopt a comprehensive
plan within three years after the date of incorporation. 30
Amendments to a Local Comprehensive Plan
Local governments must review and amend their comprehensive plans at least once every seven years
to reflect any changes in state requirements.31 Conforming amendments to the comprehensive plan
must be made within one year of the determination that an amendment is necessary. 32 A local
12 See ch. 75-257, Laws of Fla.
13 See ch. 85-55, Laws of Fla.
14 See ch. 2011-139, s. 17, Laws of Fla.
15 S. 163.3161(10), F.S.
16 S. 163.3177(1), F.S.
17 S. 163.3177(1)(d), F.S.
18 S. 163.3177(1)(a), F.S.
19 S. 163.3177(3)(a), F.S. The local government must annually review the capital improvements element.
20 S. 163.3177(6)(a), F.S.
21 S. 163.3177(6)(h), F.S.
22 S. 163.3177(6)(d), F.S.
23 S. 163.3177(6)(b), F.S.
24 S. 163.3177(6)(c), F.S.
25 S. 163.3177(6)(e), F.S.
26 S. 163.3177(6)(f), F.S.
27 S. 163.3177(6)(g), F.S.
28 S. 163.3167(1), F.S.
29 S. 163.3167(3), F.S.
30 Id.
31 S. 163.3191(1), F.S.
32 S. 163.3191(2), F.S.
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government is not required to review its comprehensive plan before its regular review period unless the
law specifically requires otherwise.33
Generally, a local government amending its comprehensive plan must follow an expedited state review
process.' Certain plan amendments, including amendments required to reflect a change in state
requirements, must follow the state coordinated review process for the adoption of comprehensive
plans.35 Under this review process, the state land planning agency is responsible for plan review,
coordination, and preparing and transmitting comments to the local government.36 The Department of
Economic Opportunity (DEO) is designated as the state land planning agency.37
Under the state coordinated review process, a local government must hold a properly noticed public
hearing about the proposed amendment before sending it for comment from several reviewing
agencies, including DEO, the Department of Environmental Protection, the appropriate regional
planning council, and the Department of State. 38 Local governments and government agencies within
the state filing a written request with the governing body are also entitled to copies of the amendment.39
Comments on the proposed plan amendment must be received within 30 days after its receipt by
DEO.40
DEO must provide a written report within 60 days of receiving the proposed plan amendment if it elects
to review the amendment .41 The report must state the agency's objections, recommendations, and
comments with certain specificity and must be based on written, not oral, comments.42Within 180 days
of receiving the report from DEO, the local government must review the report and any written
comments and hold a second properly noticed public hearing on the adoption of the amendment. 13
Adopted plan amendments must be sent to DEO and any agency or government that provided timely
comments within 10 working days after the hearing.44
After receiving the adopted plan amendment and finding it complete, DEO has 45 days to determine if
the amendment complies with the law and to issue on its website a notice of intent stating its
determination.45 A compliance review is limited to the findings identified in DSO's original report unless
the adopted amendment is substantially different from the reviewed amendment,46 Unless challenged,
a local comprehensive plan amendment takes effect pursuant to the notice of intent.47 If there is a
timely filed challenge, the plan amendment will not take effect until DEO or the Administration
Commission enters a final order determining the adopted amendment complies with the law.48
33S. 1633161(12), F.S.
34S. 163.3184(3)(a), F.S.
35 S. 163.3184(2)(c), F.S.
36 S. 163.3184(4)(a), F.S.
37 S. 163.3164(44), F.S.
38 S. 163.3184(4)(b), (c), and (11)(b)1., F.S.
39 S. 163.3184(4)(b), F.S.
40 S. 163.3184(4)(c), F.S.
41 S. 163.3184(4)(d)1., F.S.
42 S. 163.3184(4)(d)1., F.S. All written communication the agency received or generated regarding a proposed amendment must be
identified with enough information to allow for copies of documents to be requested. S. 163.3184(4)(d)2., F.S.
43S. 163.3184(4)(e)1. and (11)(b)2., F.S. If the hearing is not held within 180 days of receipt of the report, the amendment is deemed
withdrawn absent an agreement and notice to DEO and all affected persons that provided comments. S. 163.3184(4)(e)1., F.S.
44S. 163.3184(4)(e)2., F.S.
45S. 163.3184(4)(e)4, F.S.
46 Id.
47S. 163.3184(4)(e)5., F.S.
48 Id. The Administration Commission consists of the Governor and Cabinet. S. 14.202, F.S.
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Requirements for Local Land Development Regulations and Comprehensive Plans
Section 163.3202(2), F.S., outlines the minimum provisions that counties and municipalities must
include in their local government land development regulations, including provisions:
• Regulating the subdivision of land;
• Regulating the use of land and water;
• Providing for protection of potable water wellfields;
• Regulating areas subject to seasonal and periodic flooding and providing for drainage and
stormwater management;
• Ensuring the protection of environmentally sensitive lands designated in the comprehensive
plan;
• Regulating signage;
• Addressing concurrency;
• Ensuring safe and convenient onsite traffic flow; and
• Maintaining the existing density of residential properties or recreational vehicle parks.
Further, local comprehensive plans adopted after January 1, 2019, and all land development
regulations adopted to implement the plan, must incorporate development orders existing before the
plan's effective date." The plan may not impair a party's ability to complete development in accordance
with an existing development order and must vest the density10 and intensity" approved by the
development order without any limitations or modifications, 12
Effect of the Bill
Comprehensive Plans for Newly -Created Municipalities
The bill provides that a comprehensive plan for a newly incorporated municipality that becomes
effective after January 1, 2016, as well as all land development regulations adopted to implement such
plan, must:
• Incorporate all development orders existing before the plan's effective date;
• Not impair the completion of development in accordance with existing development orders; and
• Vest the density and intensity approved by the development orders existing on the plan's
effective date without limitation or modification.
Property Rights Element
The bill requires each local government to include a property rights element in its comprehensive plan
by the earlier of the date of adoption of its next proposed plan amendment initiated after July 1, 2021,
or the date of its next scheduled comprehensive plan evaluation and appraisal.
The bill also provides a model statement of rights a local government may adopt. However, the bill
allows a local government to develop its own property rights language if such language does not
49 S. 163.3167(3), F.S.
50 S. 163.3164(12), F.S., defines the term "density" as an objective measure of the number of people or residential units allowed per
unit of land, such as residents or employees per acre.
51 S. 163.3164(22), F.S., defines the term "intensity" as an objective measurement of the extent to which land may be developed or
used, including the consumption or use of the space above, on, or below the ground; the measurement of the use of or demand on
natural resources; and the measurement of the use of or demand on facilities and services.
52 S. 1613167(3), F.S.
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conflict with the model statement of rights, which requires local governments to consider the property
owner's right to:
• Physically possess the property and control his or her interests in the property, including
easements, leases, or mineral rights;
• Use, maintain, develop, and improve the property for personal use or the use of another,
subject to state law and local ordinances;
• Privacy and exclusion of others from the property to protect his or her possessions and
property; and
• Dispose of the property through sale or gift.
Local Government Development Agreements
Background
Local governments may enter into development agreements with developers.53 A development
agreement is a "contract between a local government and a property owner/developer, which provides
the developer with vested rights by freezing the existing zoning regulations applicable to a property in
exchange for public benefits.""
A local government may establish, by ordinance, procedures and requirements for considering and
entering into a development agreement with any person having a legal or equitable interest in real
property located within its jurisdiction." A development agreement may provide that the entire
agreement, or any phase thereof, must be commenced or completed within a specific time and must
include:"
• A legal description of the land subject to the agreement and the names of its legal and equitable
owners;
• The duration of the agreement;
• The development uses permitted on the land, including population densities, and building
intensities and height;
• A description of public facilities that will service the development, including who will provide
such facilities, the date any new facilities, if needed, will be constructed, and a schedule to
assure public facilities are available concurrent with the impacts of the development;
• A description of any reservation or dedication of land for public purposes;
• A description of all local development permits approved or needed to be approved for the
development of the land;
• A finding that the development permitted or proposed is consistent with the local government's
comprehensive plan and land development regulations;
• A description of any conditions, terms, restrictions, or other requirements determined to be
necessary by the local government for the public health, safety, or welfare of its citizens; and
• A statement indicating that the failure of the agreement to address a particular permit, condition,
term, or restriction does not relieve the developer of the necessity of complying with the law
governing said permitting requirements, conditions, terms, or restrictions.
Within 14 days after a local government enters into a development agreement, the local government
must record the agreement with the clerk of the circuit court in the county where the local government
is located, and such an agreement is not effective until it is properly recorded.17 A development
agreement binds any person who obtains ownership of a property already subject to an agreement
53 S. 163.3220(4), F.S.; See ss. 163.3220-163.3143, F.S., known as the "Florida Local Government Development Agreement Act."
54 Morgran Co., Inc. v. Orange County, 818 So. 2d 640 (Fla. 5th DCA 2002); 7 Fla. Jur. 2d Building, Zoning, and Land Controls § 168
(2019).
55 S. 163.3223, F.S; 7 Fla. Jur 2d Building, Zoning, and Land Controls § 168 (2019).
56S. 163.3227(1) and (2), F.S.; 7 Fla. Jur, 2d Building, Zoning, and Land Controls § 168 (2019).
57S. 163.3239, F.S; 7 Fla. Jur. 2d Building, Zoning, and Land Controls § 168 (2019).
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(successor in interest)."6 A development agreement may be amended or canceled by mutual consent of
the parties to the agreement or by their successors in interest."'
Effect of the Bill
The bill allows a party or its designated successor in interest to a development agreement and the local
government to amend or cancel a development agreement without securing the consent of the other
parcel owners that were originally subject to the development agreement unless the amendment or
cancellation directly modifies the allowable uses or entitlements of such owners' property. For example,
under the bill, if a development agreement amendment will change the terms and conditions under
which all property subject to the agreement may be developed, all owners of property subject to the
agreement must consent to the amendment. However, if a development agreement amendment will
change the terms and conditions under which only one property subject to the agreement may be
developed, only the owner of the property affected by the amendment must consent to it; the consent of
all other owners of property subject to the agreement is not required.
Department of Transportation Disposal of Real Property
Background
The Florida Department of Transportation (DOT) is authorized to convey any land, building, or other
real or personal property it acquired if it determines the property is not needed for a transportation
facility.60 In such cases, DOT may dispose of the property through negotiations, sealed competitive
bids, auctions, or any other means it deems to be in its best interest and must advertise the disposal of
any property valued over $10,000.61
DOT may not sell unneeded property for a price less than DOT's current estimate of value, except that:
• If the property was donated for transportation purposes and a transportation facility has not
been constructed for at least five years, plans have not been prepared for the construction of
such facility, and the property is not located in a transportation corridor, a governmental entity in
whose jurisdiction the property lies may authorize reconveyance of the donated property for no
consideration to the original donor or the donor's heirs, successors, assigns, or
representatives.62
• If the property is to be used for a public purpose, the property may be conveyed without
consideration to a governmental entity.63
• If the property was originally acquired specifically to provide replacement housing for persons
displaced by transportation projects, DOT may negotiate for the sale of such property as
replacement housing.64
• If DOT determines the property requires significant costs to be incurred or that continued
ownership of the property exposes DOT to significant liability risks, DOT may use the projected
maintenance costs over the next 10 years to offset the property's value in establishing a value
for disposal of the property, even if that value is zero.65
If, in DOT's discretion, a sale to a person other than an abutting property owner would be inequitable,
the property may be sold to the abutting owner for DOT's current estimate of value .61 Further, in cases
of property to be used for a public purpose, and in cases of property requiring significant costs to be
58 A successor in interest is one who follows another in ownership or control of property. A successor in interest retains the same rights
as the original owner, with no change in substance. Black's Law Dictionary 1473 (8th ed. 2004); s. 163.3239, F.S.
59 S. 163.3237, F.S.
60 S, 337.25(4), F.S.
61 /d.
62 S. 337.25(4), F.S.
63 S. 337.25(4)(b), F.S.
64 S. 337.25(4)(c), F.S.
65 S. 337.25(4)(d), F.S.
66 S. 337.25(4)(e), F.S.
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incurred or exposing DOT to significant liability risks, DOT may first offer the property ("right of first
refusal") to the local government or other political subdivision in whose jurisdiction the property is
situated.67
Effect of the Bill
Notwithstanding any provision of s. 337.25, F.S., to the contrary, the bill requires DOT to provide a right
of first refusal to the previous property owner from whom DOT originally acquired the property for
DOT's current estimate of value if the property is to be used for public purpose, requires significant
costs to be incurred, or exposes DOT to significant liability risks, or if DOT determines that a sale to any
person other than an abutting property owner would be inequitable. The offer must be made in writing,
by certified mail or hand delivery, is effective upon receipt by the previous property owner, and must
provide the previous property owner with at least 30 days to exercise the right of first refusal. If the
previous property owner wants to purchase the property, he or she must send notice to DOT by
certified mail or hand delivery, and such acceptance is effective upon dispatch. Once the right is
exercised, the previous property owner has at least 90 days to close on the property. These provisions
do not apply to property acquired by DOT more than 10 years before the date of disposition.
Developments of Regional Impact
Background
A Development of Regional Impact (DRI) is "any development which, because of its character,
magnitude, or location, would have a substantial effect on the health, safety, or welfare of citizens of
more than one county. "68 The DRI statutes were created in 1972 as an interim program intended to be
replaced by comprehensive planning and permitting laws .69 The program provided a process to identify
regional impacts stemming from large developments and appropriate provisions to mitigate impacts on
state and regional resources.70
The process to review or amend a DRI agreement and its implementing development orders went
through several revisionS71 until repeal of the requirements for state and regional reviews in 2018.72
Affected local governments are responsible for the implementation and amendment of existing DRI
agreements and development orders.73 Currently, an amendment to a development order for an
approved DRI may not amend to an earlier date the date to which the local government had agreed not
to impose downzoning, unit density reduction, or intensity reduction, unless:74
• The local government can demonstrate that substantial changes in the conditions underlying the
approval of the development order have occurred;
• The development order was based on substantially inaccurate information provided by the
developer; or
• The change is clearly established by local government to be essential to the public health,
safety, or welfare.
67 S. 337.25(4), F.S.
68 S. 380.06(1), F.S.
69 The Florida Senate, Committee on Community Affairs, Interim Report 2012-114, September 2011, citing: Thomas G. Pelham, A
Historical Perspective for Evaluating Florida's Evolving Growth Management Process, in Growth Management in Florida: Planning for
Paradise, 8 (Timothy S. Chapin, Charles E. Connerly, and Harrison T. Higgins eds. 2005).
71 Ch. 72-317, s. 6, Laws of Fla.
71 See ch. 2015-30, Laws of Fla. (requiring that new DRI -sized developments proposed after July 1, 2015, must be approved by a
comprehensive plan amendment in lieu of the state review process provided for in s. 380.06, F.S.) and ch. 2016-148, Laws of Fla.
(requiring DRI reviews to follow the state coordinated review process if the development, or an amendment to the development,
required an amendment to the comprehensive plan).
72 Ch. 2018-158, Laws of Fla.
73 S. 380.06(4)(a) and (7), F.S.
74 S. 380.06(4)(a), F.S.
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Any proposed change to a previously approved DRI must be reviewed by the local government based
on the standards and procedures in its adopted local comprehensive plan and local land development
regulations.75 However, a proposed change reducing the originally approved height, density, or
intensity of the development must be reviewed by the local government based on the standards in the
local comprehensive plan at the time the development was originally approved. 76 If the proposed
change would have been consistent with the comprehensive plan in effect when the development was
originally approved, the local government may approve the change."
In the 2018 revisions, DRI agreements classified as essentially built out and valid on or before April 6,
2018, were preserved, but the provisions allowing such agreements to be amended to exchange
approved land uses were eliminated.'$ For such agreements, a DRI is essentially built out if:"
• All the mitigation requirements in the development order were satisfied, all developers were in
compliance with all applicable terms and conditions of the development order except the
buildout date, and the amount of proposed development that remained to be built was less than
40 percent of any applicable development -of -regional -impact threshold; or
• The project was determined to be an essentially built -out development of regional impact
through an agreement executed by the developer, the state land planning agency, and the local
government.
Effect of the Bill
The bill authorizes the amendment of any DRI agreement entered into on or before April 6, 2018, and
previously classified as, or officially determined to be, essentially built out. Such amendments may
authorize the developer to exchange approved land uses, subject to the developer demonstrating that
the exchange will not increase impacts to public facilities. The bill also specifies that DRI agreement
amendments must be made pursuant to the processes adopted by local governments for amending
development orders.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
None.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
The bill may have an insignificant negative fiscal impact on local governments by requiring each
county and municipality to adopt a private property rights element into its comprehensive plan by
75 S. 380.06(7)(a), F.S. These procedures must include notice to the applicant and public about the issuance of development orders.
761d.
77 Id.
78 S. 380.06(4), F.S.; see also ch. 2018-158, s. 1, Laws of Fla.
79 S. 380.06(15)(g)3. and 4., F.S. (2017).
STORAGE NAME: h0059z1AV.DOCX PAGE: 9
DATE: 4/30/2021
the earlier of its next proposed plan amendment initiated after July 1, 2021, or the next scheduled
evaluation and appraisal of its comprehensive plan.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
None.
D. FISCAL COMMENTS:
None.
STORAGE NAME: h0059z.LAV.DOCX PAGE: 10
DATE: 4/3012021
FLORIDA DEPARTMENT ef
ECONOMIC OPPORTUNITY
Dear Local Government Partners:
The Bureau of Community Planning and Growth would like to provide you with an
update on legislation that recently became law. Statutory provisions in Chapter 163,
Florida Statutes, related to comprehensive plans, were amended to require each local
government to adopt a property rights element into their comprehensive plan.
Inclusion of the property rights element is intended to protect private property rights
and to ensure they are considered in local decision-making.
House Bill 59, which became law on June 29, 2021, adds Section 163.3177(6)(1),.
Florida Statutes. Effective July 1, 2021, each local government is now required to
adopt a property rights element into its comprehensive plan. This new element must
be adopted by the earlier of the date of its adoption of its next proposed plan
amendment, or the date of the next scheduled evaluation and appraisal of its
comprehensive plan pursuant to Section 163.3191, Florida Statutes.
Any proposed comprehensive plan amendment package submitted after July 1, 2021,
will be returned to the local government if the package does not include a property
rights element or if the comprehensive plan does not already include the required
property rights element.
The Bureau of Community Planning and Growth is available to provide you with
assistance. For any questions that you have regarding this matter, please contact Ray
Eubanks, Plan Processing Administrator, by telephone at 850- 717-8483 or email at
Ray.Eubanks (cDDEO.MvFlorida.com.
FEATURE
vthe protection of property
rights — a subject that had not
been of great political or judicial
importance since the 1930s has
become the domestic political movement
of the 1990s. Its advocacy in courts and
legislatures threatens to impose serious
limitations on environmental and land use
policies nationwide.
Much of the recent controversy over
property rights revolves around the issue of
ownership of land and the constraints
imposed upon its use and development.
Whether the subject is building in wet-
land areas, the imposition of development
fees, limitations imposed on logging,
restricting development on farm land, or
the preservation of wildlife habitat and
open space, the underlying issue is the
same: to what extent can or should the gov-
ernment interfere with a landowner's right
to do what he or she wants to do with his or
her property? Indeed, this question has
now become the central legal (as well as
political) issue in the making of planning
and environmental policy.
The issue is of particular importance
and the subject of increasing controversy in
the rural and urbanizing communities of
America. Here, officials are wrestling with
the challenge of how they can organize,
control, and coordinate the process of
development so as to protect the environ-
mental, cultural, aesthetic, and fiscal char-
acter of the locality — while meeting the
need for new housing, industrial facilities,
and commercial growth.
Decisions concerning how land is to be
used and the conditions under which it can
be developed are, of course, critical compo-
nents of this growth management process.
Such decisions, however, impinge directly
on the control which property owners can
exercise over their holdings and raise ques-
tions concerning the extent to which the
use of land can be regulated consistent with
by Irving Schiffnian
the Fifth and Fourteenth Amendments to
the United States Constitution.
LOCAL AUTONOMY
IN LAND USE CONTROL
Historically, cities and counties have
been allowed a great deal of autonomy in
their governance of land use. Indeed, as
environmental concerns grew in the 1970s,
state legislatures frequently responded by
strengthening the planning and regulatory
capabilities of local governments and by
expanding the criteria to be utilized in deci-
sion-making.
Local planning officials were also able to
count on the support of a sympathetic judi-
ciary in their efforts to carry out the plan-
ning and land use function. Favorable court
decisions reflected the belief that the Con-
stitution should not be interpreted in a rigid
manner that would deny communities the
flexibility and legal protection needed to
implement necessary and community sup-
ported planning objectives.
CHANGES IN PLANNING LAW
In 1987, however, local land use regula-
tions began to come under closer judicial
scrutiny. In a series of decisions the United
States Supreme Court shifted the focus of
review in land use cases from determining
whether the generally permissive due
process criteria of the Fourteenth Amend-
ment had been met to deciding whether the
more stringent standards of the Fifth
Amendment's "taking clause" had been sat-
isfied. The Court found development con-
ditions and zoning controls failed to meet
"taking clause" standards, even though due
process criteria were satisfied. )D The Supreme
Cows & "Tahhngs," p.13
This change is significant because
courts traditionally have been quite reluc-
tant to strike down land use control ordi-
nances for failing to meet due process
criteria, particularly since the individual
challenging the ordinance has the burden of
overcoming the presumption that the ordi-
nance is constitutional. The Supreme Court
has also made it clear that while local gov-
ernments could rescind land use regula-
tions held to be invalid, they would remain
liable for the payment of monetary damages
for the period of time that the invalid land
use controls were in effect.
THE CONSEQUENCES FOR PLANNING
This change in direction in planning
law has caused some to question the con-
tinued legitimacy of key aspects of the plan-
ning process, particularly controls that
require property dedications and those that
go beyond directly protecting human
health and safety With respect to the latter,
regulations designed to conserve wetlands,
open space, historic districts, grazing lands,
coastal areas, and the like now appear to be
subject to heightened judicial scrutiny.
In addition, the unsettling of decades of
consistently favorable judicial decisions has
caused planners to lose some of the consti-
tutionally -based leverage which they bring
to the bargaining table —while the bargain-
ing power of project applicants has been
correspondingly strengthened. Eventually,
this combination of official caution and
property owner assertiveness may lead to a
"fear -of -litigation" relaxation of existing
controls and narrowing of community
planning objectives.
Adding to the concern of local govern-
ments is the fact that opponents of land use
regulation have now moved beyond the
courts and taken their struggle to the Con-
gress and the state legislatures. In Congress,
efforts are underway to weaken both the
Endangered Species Act and the Clean
Water Act to make them less protective of
wildlife habitat and wetlands. In addition,
complementary legislation would require
the government to compensate landowners
continued on next page
PLANNING COMMISSIONERS JOURNAL / NUMBER 2 1 / WINTER 1996
The Property Rights Challenge...
continuedfi,orn page 11
when regulations under the two laws cause
a diminution in the value of affected prop-
erty.
Outside of the nation's capital, in jus
the past five years, legislatures in 17 states
have passed laws to protect property rights
and another 24 have considered such legis-
lation. Most of the laws enacted simply
require agencies to conduct "takings impact
assessments" before carrying out regulatory
actions, but two states — Mississippi and
Texas — require invalidation or compensa-
tion for any state or local regulation that
reduces property values. A 1995 Florida
statute allows courts to order compensation
if "inordinate" State or local regulation
reduces the value of property or prevents
owners from making the money they rea-
sonably expected. Various forms of so-
called "property rights" laws are pending in
almost every state legislature.
As the courts and legislatures have
become more hostile to planning and envi-
ronmental regulation, local governments
find that ensuring quality development,
while protecting wildlife habitat, wetlands,
historic areas, and other environmental and.
cultural assets, has become a much more
challenging task. If such values are to be
protected, city and county officials may
have to do so themselves, and in a less
favorable legal and political environment.
WHAT'S A PLANNER To Do?
The changed legal and political envi-
ronment within which planners and local
officials must now operate requires a re-
thinking of a number of planning practices.
While local officials cannot afford to retreat
from important community planning
objectives, neither can they ignore the
increased concern with protection of prop-
erty rights. Thought must be given to how
plan policies can be achieved with the least
infringement on ownership rights. This will
require the adoption of implementation
strategies that are diverse and innovative,
and which skillfully combine regulatory,
incentive, and. voluntary approaches.
Toward this end, those responsible for car-
rying out community planning may wish to
consider the following practice guidelines:
1. Know the Law. Although recent
court decisions have tended to limit the
flexibility of planning policy -makers, much
of the previously established case law
regarding land use controls remains in
effect (e.g., the ability of localities to reduce
or increase densities to meet planning
objectives; to require bicycle lanes in new
subdivisions; or to preserve historic areas).
Local officials continue to possess a great
deal of discretionary authority to regulate
land use and to protect environmental
values.
It is important that planners, legislators,
and planning commissioners keep
informed regarding the true scope of their
authority, and that they not be misled by
project applicants who seek to expand the
significance of recent decisions far beyond
their legitimate interpretation.
2. Enhance Public Participation in
the Planning Process. In an uncertain legal
and political environment it is more impor-
tant than ever that the goals and objectives
of the planning process be fully supported
by all elements of the community. Through
the use of focus groups, public meetings,
surveys, and other techniques, residents
should be provided an early and continu-
ous voice in the planning process.
Participation should include considera-
tion of specific implementation strategies as
well as more general policy directions —
and participants should have a clear under-
standing of the relationship between plan
objectives and implementation techniques.
As part of the process, officials should con-
sider the drafting of a vision statement, a
consensus document Outlining the commu-
nity's vision for its future. [Editor's Note: For
more on visioning, see Mike Chandler's column
on p. 171.
3. Be Prepared to Justify Develop-
ment Conditions. Consistent with the
Supreme Court's Nollan and Dolan deci-
sions, courts are now more closely examin-
ing how specific controls further legitimate
plan policies — and are striking down
requirements that do not show a clear rela-
tionship between project impacts and
development fees or conditions. Thus, local
governments have an increased burden to
justify constraints placed on project
approvals. This will require a more profes-
sional approach to land use regulations and
subdivision exactions.
In carrying out the land use control
function, planning officials should be pre-
pared to make findings which directly link
the control techniques which are to be
imposed (e.g., impact fees-, dedication
requirements; zoning limitations; or devel-
opment conditions) with the objectives and
policies of the master plan. In addition,
local governments should consider requir-
ing project applicants to submit more
detailed analyses of the impacts of their
projects so that the government can estab-
lish the required close connection between
the project impact and the conditions
imposed.
4. Expand the Range of Implementa-
tion Techniques. The greater the assort-
ment of implementation strategies from
which a locality can select, the more flexi-
bility it will have in carrying out plan objec-
tives. A community which has adopted
such techniques as agricultural buffers,
cluster development, transfer of develop-
ment rights, overlay zones, performance
zoning, and mixed-use development, is
able to consider a variety of methods to
achieve plan objectives that leave property
owners with sufficient economic value to
avoid a takings claims. For example, devel-
opment may be possible in ecologically sen-
sitive areas if housing is clustered and
separated from the most delicate areas by
natural or man-made buffers, or if an over-
lay zone is established which sets special
conditions that development in the zone
must meet.
5. Establish and Maintain a Capital
Improvement Program. This multi-year
program, often adopted in conjunction
with the municipal plan, sets forth the
major capital improvement needs of the
city or county. It typically includes informa-
tion on where capital improvements will be
located, when they will be provided, and
PLANNING COMMISSIONERS JOURNAL / NUMBER 2 1 / WINTER 1996
how they will be financed. Through regu-
lation, development can be phased to
coincide with the extension of essential
services pursuant to the capital improve-
ment program schedule. In many com-
munities, developers can seek to
accelerate this process by agreeing to pro-
vide facilities ahead of schedule at their
own expense or by installing oversized
facilities on a reimbursement basis,
6. Place Greater Focus on Incentive
and Voluntary Approaches. In many
cases, plan objectives can be met without
unilaterally imposing controls by giving
developers something they want in
exchange for something the community
desires. Thus, affordable housing, usable
open space, design amenities, and other
benefits can be obtained in return for such
incentives as density bonuses, streamlin-
ing the application process, or reductions
in development fees.
Landowners can also be encouraged
to take advantage of the tax relief and
preservation opportunities available
through the voluntary use of private or
public land trusts.
7. Streamline the Permit Process. In
almost every community some of the
opposition to planning controls is due to
citizen anger and frustration at the time
and expense involved in obtaining the
necessary permits, or in getting a yes or no
answer from the responsible officials.
Local governments should review the
process by which land use applications
are handled and determine ways in which
the process can be simplified, and made
less costly (particularly for small parcels)
and less time-consuming.
8. Increase Public Ownership and
Interest in Land. Local officials should
take advantage of opportunities to pur-
chase property of outstanding ecological
or historical importance for parkland,
landmark, or recreation purposes. Com-
munities in a Position to purchase devel-
opment rights, particularly for agricultural
land, can preserve the agricultural use
while keeping the land in private owner-
ship and on the tax roles. In addition,
developable land owned by the govern-
ment can be transferred to the private sec-
tor With conditions restricting its use
without raising a takings issue. Finally,
where appropriate, public land can be
exchanged for private land with conserva-
tion value.
9. Increase the Public Speaking
Roles of Commissioners and Local Offi-
cials. In recent days, opponents of plan-
ning and environmental regulation have
been outspoken in their opposition, fre-
quently drowning out the assertions of
those who appreciate the importance of
planning and recognize the consequences
of the unregulated exercise of property
rights. It is important that planning oppo-
nents not have the field to themselves,
and that community residents get to hear
all sides of the property rights issue.
Planners, commissioners, elected offi-
cials, and others should take advantage of
opportunities provided by the media, fra-
Lemal associations, and public meetings to
discuss the purpose of local planning and
its contribution to the welfare of the com-
muniLy. They should remind their audi-
ence that land ownership entails
responsibilities as well as rights.
10. Maintain Educational Programs
for Commissioners. As the planning
process becomes more complex, commis-
sioners need to be fully informed so that
they can effectively participate in the
process and communicate with the pub-
lic. If at all possible, arrangements should
be made for commissioners to receive
training upon appointment. Subsequently,
commissioners should be encouraged to
attend state and regional planning meet-
ings and workshops, and learn about
other communities where innovative
planning and land use approaches are
underway. *
Irving Schiffman is a Pro-
fessor of Political Science
and former Director of the
Master of Rural and Town
Planning program at Cali-
fornia State University,
..........
Chico. He is the author Of
Alternative Techniques
for Managing Growth
(Berkeley: University of California, Institute of Gov-
ernmental Studies, 1990). Schiffinan also holds a
J.D. degree from Nov York University School of
Laiv, and is former Chairman of the City oj* Chico
Architectural Review Board.
PLANNING COMMISSIONERS JOURNAL
N U M B E
I Ii, 'i I
budiumg better communities - saving special places
Dear Florida local government leader,
This summer, Florida amended the Community Planning Act to require every city and county "to
include in its comprehensive plan a property rights element." FLA. STAT. § 163.3177(6)(i)1.
(2021). Your city or county must adopt this new element "by the earlier of the date of its adoption
its next proposed plan amendment that is initiated after July 1, 2021, or the date of the next
scheduled evaluation and appraisal of its comprehensive plan." FLA. STAT. § 163.3177(6)(i)2.
(2021).
1000 Friends of Florida believes that open and transparent decision-making is the best protection
for property rights. We have long advocated for the rights of all people to contribute to local
government planning. Engaged citizens improve their neighborhoods. Our quality of life is
enhanced, our environment is protected and our communities are strengthened when local
government planning respects the rights of everyone. Public participation leads to more
thoughtful and enduring planning, and builds more public support for plans.
We have authored the enclosed model property rights element for Florida comprehensive plans in
collaboration with faculty at the University of Florida so that you can underscore your
commitment to property rights and public participation. This model property rights element
meets the applicable standards of the Community Planning Act. But it does more. With this
element, your city or county can affirm its support for the rights of all people to participate in the
planning decisions you make that affect their lives and property.
If you have further questions about this proposed element, please contact 1000 Friends of Florida
Policy & Planning Director Jane West at jwest@1000fof.org or 904-671-4008. A downloadable
version of this document is available at www. 1000fof.orglproperty-rights.
Sincerely,
Paul Owens, President
Post Office Box 5948 - Tallahassee, FL 32314-5948 - PHONE 850.222.6277
We all rely on local government plans in different ways.
• Residents of any community have chosen to live there—and often have bought a home, the
most significant financial decision many people make—because of things local governments
address, like the condition of streets and parks, the proximity to daily needs, and community
safety.
• Businesses locate in a community for its resources. They care about human assets, like
customers and workers. And they care about physical assets like public infrastructure and the
environment. From farmers to tech companies, businesses rely on local government plans so
they can count on these resources being available.
• Finally, real estate investors study local government rules so they can make financial plans and
accurately evaluate investment opportunities. For investments in real estate to have low risk,
local governments need to protect and improve the quality of a community over time.
Land values reflect how desirable a community is in many ways. Regulating land use and
protecting property rights are not conflicting goals. Rather, local government rules generally
create value in property and bring stability to real estate markets. Rules that benefit the public
also protect property rights.
Still, a local government's process for regulating land greatly impacts real estate markets and
property rights. Transparency, predictability, and reliability are three strategies for implementing
land use rules in a way that benefits people and respects property rights.
• Transparency means people can see and participate in processes for developing rules.
• Predictability means a local government follows rules that are clear and unambiguous. Real
estate investors should be able to read rules and know whether local government will permit
a development proposal. Residents should be able to read rules and then know what kind of
development will occur in their community.
• Reliability means a local government follows through on its commitments. Cities and
counties should make realistic plans and should follow them. And local governments should
only change their plans after thorough consideration leads to strong support. When a
government is reliable, people can make long-term investments in the community—one key
to a successful local economy.
continued on next page
Adoption Guidecoiitinued
The property rights element
The property rights element attached includes three objectives addressing property rights.
• Objective I identifies specific property rights and states that local government will respect
them.
Objective 2 identifies the rights of people to participate in decisions that affect their lives and
property. The objective provides standards for local government decisions to be tratisparent
in respect for this right.
Objective 3 provides standards for local government decision-making to be reliable and
predictable to promote sound, long-term investments in a community.
The following paragraphs explain each of these objectives, and their policies, in more detail.
Objective ]—Respect property rights
Florida Statutes provide the language of objective I and of policies 1.1 through 1.4 as possible
language local governments can adopt to meet the statutory requirement to have a property
rights element. See Fla. Stat. § 163.3177(6) (i) (2021). Adopting objective I alone would meet the
minimum statutory standard of having a property rights element in a comprehensive plan.
Objective 2—Transparency
Florida law recognizes the due process rights of people who are parties to many local government
land use decisions. See Brevard Cnty. v. Snyder, 627 So. 2d 469 (Fla. 1993) and Jennings V. Dade
Cnty., 589 So. 2d 1337 (Fla. 3d DCA 1991). Due process rights are rights to have government
make decisions in a certain way when those decisions affect other rights, like the right to property.
Courts have recognized due process rights in Florida land use hearings including the right to
receive notice, the right to be heard, the right to present or rebut evidence, and the right to be
informed of all facts on which a local government bases its decision. Jennings at 1340. Objective 2
includes four policies that clearly identify what decisions a local government will make in a
hearing, who will get to participate in that hearing, and what process the local government will
use to protect the rights of participants.
continued on next page
Adoption Guide continued
State law does not require a local government to adopt objective 2 and a local government could
adopt this property rights element with or without objective 2 and its comprehensive plan could
still comply with state law. Adopting objective 2, however, establishes clear standards to make
planning and development decisions more transparent.
Here are summaries of and notes on each of the four policies in objective 2.
• Policy 2.1 identifies those decisions a local government will make according to objective 2.
The decisions are: comprehensive plan amendments, rezonings, and development approvals
of a certain size or requiring a variance or an exception. A variance is permission to not
follow land use rules a government may grant when following those rules would create a
hardship. Josephson v. Autrey, 96 So. 2d 784 (Fla. 1957). An exception is permission to not
follow a general land use rule when a development proposal meets certain predetermined
standards. 7 Fla. fur. 2d Building, Zoning, and Land Controls § 245 (2020).
The threshold sizes that Policy 2.1 provides for development to be subject to objective 2
should vary depending on the needs of each city or county. Policy 2.1 presents these
thresholds in brackets so a local government can easily identify them and change them to
match local needs.
Policy 2.2 includes two subparagraphs. Subparagraph A identifies who may participate in a
hearing. Subparagraph A calls a person who may participate an "affected person." The
explanation of who is an affected person generally follows the definition of "aggrieved or
adversely affected party" in the Community Planning Act. FLA. STAT. § 163.3215(2). The
explanation of who is an affected person also includes associations representing the interests
of their members. This inclusion of associations generally follows the Florida Supreme Court
standard for associational standing. Fla. Home Builders Assn v. Dept of Lab. & Emp. Sec.,
412 So. 2d 351, 353-54 (Fla. 1982).
Subparagraph B identifies some of the procedural due process rights that Florida courts have
recognized parties to some land use hearings have. See Jennings v. Dade Cnty., 589 So. 2d
1337,1340 (Fla. 3d DCA 1991).
continued on next page
Adoption Guide continued
• Policy 2.3 requires a local government to mail notice of hearings when those hearings relate
to a specific property.
Policy 2.3 sets a threshold distance from the specific property that the local government will
use to identify the residents and property owners to whom the local government will mail
notice. This threshold distance should vary depending on the needs of each city or county
that adopts the property rights element. Policy 2.3 presents this threshold in brackets so a
local government can easily identify it and change it to match local needs.
• Policy 2.4 requires an applicant to hold a public pre -application meeting. State law does not
require public pre -application meetings for planning and development decisions. However,
informing the public early about planned changes to their community is a best practice that
many recognize.
For example, the 1000 Friends of Florida Citizen Planning Bill of Rights calls for applicants
to "conduct workshops with citizens to identify all issues of concern prior to any public
hearing." Citizen Planning Bill of Rights, 1000 Friends of Florida, 1000f6£org/citizens/bill/
(last visited July 11, 2021).
Also, the American Institute of Certified Planners requires planners to "provide timely,
adequate, clear, and accurate information on planning issues to all affected persons" and to
"give people the opportunity to have a meaningful impact on the development of plans and
programs that may affect them." AICP Code of Ethics and Professional Conduct, American
Institute of Certified Planners (April 1, 2016).
Policy 2.4 sets a threshold distance from the specific property that the applicant will use to
identify the residents and property owners the applicant will invite to the public pre -
application meeting. This threshold distance should vary depending on the needs of each
community that adopts the property rights element. Policy 2.4 presents this threshold in
brackets so a local government can easily identify it and change it to match local needs.
continued on next page
Adoption Guidecowinued
Objective 3
Objective 3 includes three policies that provide special procedural standards for certain local
government decisions. State law does not require a local government to adopt objective 3 and a
local government could adopt this property rights element with or without objective 3 and its
comprehensive plan could still comply with state law. Adopting objective 3, however, establishes
clear standards to make planning and development decisions more predictable and reliable. The
1000 Friends of Florida Citizen Planning Bill of Rights recommends the standards included in
objective 3.
Here are summaries of and notes on each for the three policies in objective 3.
- Policy 3.1 identifies those decisions a local government will make according to objective 3.
The decisions are comprehensive plan amendments and rezonings.
• Policy 3.2 requires a local government to make some decisions by a majority -plus -one vote.
The 1000 Friends of Florida Citizen Planning Bill of Rights says, "In order to protect the
integrity of the comprehensive plan, a'super majority' vote should be required for proposed
changes that directly affect the community's unique sense of place.... Changes to such
important policies should have the highest level of support and require the consent of more
than a simple majority of elected officials." Citizen Planning Bill of Rights, 1000 Friends of
Florida, 1000fof.orglcitizens/bill/" (last visited July 11, 2021).
• Policy 3.3 requires a local government to make some decisions only after the proposed
decision, and information supporting it, have been available to the public for ten days. The
1000 Friends of Florida Citizen Planning Bill of Rights says publishing information
regarding important decisions well before a hearing "allows citizens, commissioners, and
others to fairly evaluate the document with data and analysis and not be subject to an endless
`shell game' of last-minute changes." Id.
OWMNIM- MEMEMEMMEEMM
Ordinance No. < Ordinance Number>
An Ordinance Of The <Local Government Name>
Amending the Comprehensive Plan by Adding a
New Property Rights Element.
WHEREAS, Section 163.3167, Florida Statutes, requires <local government name> to maintain a
comprehensive plan to guide its future development and growth; and
WHEREAS, Section 163.3177(6) (i) I., Florida Statutes, requires the <local government name>
comprehensive plan to include a property rights element; and
WHEREAS, <local government name> respects judicially acknowledged and constitutionally
protected private property rights; and
WHEREAS, <local government name> respects the rights of all people to participate in land use
planning processes; and
WHEREAS, this ordinance will amend the comprehensive plan by adding a property rights
element;
NOW, THEREFORE, BE IT ORDAINED BY THE <GOVERNING BODY NAME>:
SECTION 1. The <local government name> comprehensive plan is amended by adding the
property rights element attached as EXHIBIT A and made a part of this ordinance as if set forth
in full.
PASSED AND ADOPTED this day of
<Appropriate official name and title>
Attest:
<Appropriate official name and title>
Approved as to form and legality:
<Appropriate official name and title>
This ordinance passed on transmittal (first) reading this
This ordinance passed on adoption (second) this
day of
VAn
3 I AMM
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Goal <Local government name> will making planning and development decisions with respect
for property rights and with respect for people's rights to participate in decisions that affect their
lives and property.
Objective I < Local government name> will respect judicially acknowledged and constitutionally
protected private property rights.
Policy 1.1 < Local government name> will consider in its decision-making the right of a property
owner to physically possess and control his or her interests in the property, including easements,
leases, or mineral rights.
Policy 1.2 < Local government name> will consider in its decision-making the right of a property
owner to use, maintain, develop, and improve his or her property for personal use or for the use
of any other person, subject to state law and local ordinances.
Policy 1.3 < Local government name> will consider in its decision-making the right of the
property owner to privacy and to exclude others from the property to protect the owner's
possessions and property.
Policy 1.4 < Local government name> will consider in its decision-making the right of a property
owner to dispose of his or her property through sale or gift.
Objective 2 People have the right to participate in planning and development decisions that affect
their lives and property. <Local government name> decision-making will be transparent so that
all people may participate in decisions that affect their lives and property. Policies 2.1 through 2.4
provide minimum standards for some planning and development decisions. Land development
regulations may provide for additional processes and standards.
Policy 2.1 Decisions for which <local government name> must follow policies 2.2 through 2.4.
<Local government name> must follow the procedures in policies 2.2 through 2.4 when <local
government name>: amends this comprehensive plan; changes the zoning designation of
property; or approves a development order for more than [9] residential dwelling units, for more
than [9,999] square feet of non-residential development, governing more than [5] acres of land,
requiring a variance, or requiring an exception.
Policy 2.2 Public hearing necessary. A decision policy 2.1 identifies must occur in a public
hearing meeting the standards of this policy.
continued on next page
"rl I
Exhibit A. continued
A. Any affected person may participate. <Local government name> recognizes that planning
and development decisions affect complex systems and have impacts that occur beyond the site of
development. Any affected person may participate in and be a party to a hearing on a decision
this policy governs. An affected person is any person or local government that will suffer an
adverse effect to an interest protected or furthered by this comprehensive plan, including interests
related to health and safety, police and fire protection sei vice systems, densities or intensities of
development, transportation facilities, health care facilities, equipment or services, and
environmental or natural resources. The alleged adverse interest may be shared in common with
other members of the community at large. An owner, developer, or applicant for a development
order is an affected person. An association representing the interest of one or more members
when the interest is within the association's general scope of interest and activity is an affected
person.
B. An affected person's right to be heard. <Local government name> recognizes that it should
make planning and development decisions in response to true and accurate information. In all
decisions this policy governs, <local government name> will provide every affected person an
equal opportunity to be heard, to present and rebut evidence, and to be informed of all
information on which <local government name> bases its decision. <Local government name>
will not grant any affected person a greater opportunity to be heard than another affected person.
For example, no affected person, including an applicant for a development order, may present in
a hearing for more time than <local government name> makes available to any other affected
person.
Policy 2.3 <Local government name> must mail notice. <Local government name> recognizes
that a person cannot participate in decisions about which they are unaware. In addition to
providing notice as other laws require, when <local government name> makes a decision policy
2.1 identifies that relates to a piece or to pieces of real property that <local government name>
can specifically identify, <local government name> will, at least 30 days before the hearing, mail
notice of the hearing to the owners of real property and to residents within [ 1,320] feet of the real
property to which the decision relates.
Policy 2.4 Public pre -application meeting. <Local government name> recognizes that planning
and development decisions raise issues which <local government name> may not be capable of
adequately addressing in a single hearing and that <local government name> will make the best
decisions when every affected person has the opportunity to participate early and throughout the
decision-making process. The applicant for a decision policy 2.1 identifies (or <local government
name> if <local government name> initiates the decision-making process) must hold a public
continued on next page
'r" I
Exhibit Acontinued
pre -application meeting prior to applying for or initiating the decision-making process. The
party holding the meeting must request, at least 30 days before the meeting, that <local
government name> provide notice of the meeting in the normal manner that <local government
name> provides notice of public meetings and <local government name> will comply with this
request. In addition, if a proposal relates to a piece or to pieces of real property that the party
holding the meeting can specifically identify, then the party holding the meeting must, at least 30
days before the meeting, mail notice of the meeting to residents and to owners of real property
within [1,320] feet of the real property to which the proposal relates. In the meeting, the party
holding the meeting must: present its proposal, provide time for all people attending to ask
questions and share their perspectives, and record notes which it will provide to <local
government name> and which <local government name> will make a part of the record related
to its decision on the proposal.
Objective 3 People rely on this comprehensive plan and on the zoning designations of properties
when deciding how to use property. <Local government name> decision-making will be reliable
and predictable to promote sound, long-term investments in the community. Policies 3.1 through
3.3 provide minimum standards for some planning and development decisions. Land
development regulations may provide for additional processes and standards.
Policy 3.1 Decisions for which <local government name> must follow policies 3.2 and 3.3.
<Local government name> must follow the procedures in policies 3.2 and 3.3 when <local
government name> amends this comprehensive plan or changes the zoning designation of
property.
Policy 3.2 Majority -plus -one vote required. <Local government name> may only make a
decision policy 3.1 identifies by the affirmative vote of a majority plus one of the <local
government governing body name (e.g. city commission or county commission)>.
Policy 3.3 Right to evaluate proposed decisions. <Local government name> respects the right of
people, including elected officials, to fairly evaluate proposed decisions this objective governs. The
<local government governing body name> may only make a decision policy 3.1 identifies ten or
more days after <local government name> has made available to the public the specific decision
the <local government governing body name> will consider and the written record which will
support the <local government governing body name> decision. If <local government name (e.g.
city commission or county commission)> adds information to the written record, or if the <local
government governing body name> revises a proposed decision within ten days of a planned
public hearing, the <local government governing body name> must postpone its decision until
enough time has passed to satisfy this policy.
Ron DeSantis
GOVERNOR
FLORIDA DEPARTMENT if
ECONOMIC OPPORTUNnY
0 0=1 a
The Honorable Art Woodruff
Mayor, City of Sanford
300 North Park Avenue
Sanford, Florida 32771
Dear Mayor Woodruff:
Dane Eagle
SECRETARY
The Department of Economic Opportunity ("Department") has reviewed the City of Sanford
proposed comprehensive plan amendment (Amendment No. 21-03ESR), received on
September 22, 2021, pursuant to the expedited state review process in Section 163.3184(2) -
(3), Florida Statutes (F.S.). We have identified a comment related to adverse impacts to
important state resources and facilities within the Department's authorized scope ofreview.
The Agency's comment regarding these amendments are attached to this letter.
The City should act by choosing to adopt, adopt with changes, or not adopt the proposed
amendment. For your assistance, we have enclosed the procedures for adoption and
transmittal of the comprehensive plan amendment. In addition, the City is reminded that:
o Section 163.3184(3)(b), F.S., authorizes other reviewing agencies to provide comments
directly to the City. If the City receives reviewing agency comments and they are not
resolved, these comments could form the basis for a challenge to the amendment
afteracloption.
The second public hearing, which shall be a hearing on whether to adopt one or more
comprehensive plan amendments, must be held within 180 days of your receipt of
agency comments or the amendment shall be deemed withdrawn unless extended by
agreement with notice to the Department and any affected party that provided
comment on the amendment pursuant to Section 163.3184(3)(c)1., F.S.
• The adopted amendment must be rendered to the Department. Under Section
163.3184(3)(c)2. and 4., F.S., the amendment effective date is 31 days after the
Department notifies the City that the amendment package Is complete or, if challenged,
until it is found to be in compliance by the Department or the Administration
Commission.
Florida Department of Economic Opportunity I Caldwell Building 1107 E. Madison Street I Tallahassee, FL 32399
850.245.71051 www.FloddaJobs.orca
www.twifter.com/FLDEO jwww.facebook.com/Fl-DEO
An equal opportunity employer/program. Auxiliary aids and service are available upon request to individuals with
disabilities. All voice telephone numbers on this document may be reached by persons using TTY1TTD equipment via
the Florida Relay Service at 711.
The Honorable Mayor Woodruff
October 22, 2021
Page 2 of 2
If you have any questions concerning this review, please contact Paul Lim, Planning Analyst,
by telephone at (850) 717-8511 or by email at Paul.Lim@deo.myflorida.com,
/Since ly,
Since ly,
mes D. Stansbury, Chief
Bureau
a u 0
ureau of Community Planning and Growth
JDS/ PI
Enclosure(s): Procedures for Adoption
cc: Eileen Hinson, AlCP, Development Services Manager, City of Sanford
Hugh Harling, Jr., P.E., Executive Director, East Central Florida Regional Planning Council
Agency's comments
Comment: Property Rights Element
Section 163.3177(6)(1)I., F.S. (Ch. 2021-195, Laws of Fla.), requires each local government to
include a property rights element in its comprehensive plan. The local government has
proposed its own property rights element instead of the statement of rights provided by
Section 163.3177(6)(i)1., F.S. The proposed property rights element limits consideration of
private property rights to "planning and development decisions" in the Goal in conflict with the
requirements of Section 163.177(6)(i)1, F.S., requiring consideration in "local decisionmaking."
Prior to adoption, the Property Rights Element must be revised to consider or respect private
property rights in all of the City's "local decisionmaking."
Please be advised the property rights element adopted by the local government may not
conflict with the statement of rights provided under Section 163.3177(6)(i)1., F.S. To ensure
adopted language does not conflict, the Department recommends that the local government
consult with its legal department.
SUBMITTAL OF ADOPTED COMPREHENSIVE PLAN AMENDMENTS
1:141; 1 *.0 4 11 k t 4 URiUYt4U;iY1ATjT
Section 163.3184(3), Florida Statutes
NUMBER OF COPIES TO BE SUBMITTED: Please submit electronically using the Department's electronic
amendment submittal portal "Comprehensive Plan and Amendment Up -load"
(hugs.4
,46ffori d—jpbs.secure* force. or submit three complete copies of all comprehensive plan
materials, of which one complete paper copy and two complete electronic copies on CD ROM in
Portable Document Format (PDF) to the State Land Planning Agency and one copy to each entity below
that provided timely comments to the local government: the appropriate Regional Planning Council;
Water Management District; Department of Transportation; Department of Environmental Protection;
Department of State; the appropriate county (municipal amendments only); the Florida Fish and Wildlife
Conservation Commission and the Department of Agriculture and Consumer Services (county plan
amendments only); and the Department of Education (amendments relating to public schools); and for
certain local governments, the appropriate military installation and any other local government or
governmental agency that has filed a written request.
SUBMITTAL LETTER: Please include the following information in the cover letter transmitting the
adopted amendment.
State Land Planning Agency identification number for adopted amendment package;
Summary description of the adoption package, including any amendments proposed but not
adopted;
Identify if concurrency has been rescinded and indicate for which public facilities.
(Transportation, schools, recreation and open space).
Ordinance number and adoption date;
Certification that the adopted amendment(s) has been submitted to all parties that provided
timely comments to the local government;
Name, title, address, telephone, FAX number and e-mail address of local government contact;
Letter signed by the chief elected official or the person designated by the local government.
I'll 11111i ' I
Revised: March 2021 Page 1
ADOPTION AMENDMENT PACKAGE: Please include the following information in the amendment
package:
In the case of text amendments, changes should be shown in strike-through/underline format.
in the case of future land use map amendments, an adopted future land use map, in color
format, clearly depicting the parcel, its future land use designation, and its adopted designation.
A copy of any data and analyses the local government deems appropriate.
Note: if the local government is relying on previously submitted data and analysis, no additional data
and analysis is required;
Copy of the executed ordinance adopting the comprehensive plan amendment(s);
Suggested effective date language for the adoption ordinance for expedited review:
"The effective date of this plan amendment, if the amendment is not timely challenged, shall be
31 days after the state land planning agency notifies the local government that the plan
amendment package is complete. If the amendment is timely challenged, this amendment shall
become effective on the date the state land planning agency or the Administration Commission
enters a final order determining this adopted amendment to be in compliance."
List of additional changes made in the adopted amendment that the State Land Planning Agency
did not previously review;
List of findings of the local governing body, if any, that were not included in the ordinance and
which provided the basis of the adoption or determination not to adopt the proposed amendment;
Statement indicating the relationship of the additional changes not previously reviewed by the
State Land Planning Agency in response to the comment letter from the State Land Planning Agency.
Revised: March 2021 Page 2
WS RM
Item NO.',--, #q
CITY COMMISSION MEMORANDUM 21.234
NOVEMBER 8, 2021 AGENDA
To: Planning and Zoning Commission
PREPARED BY: Eileen Hinson, AICP — Acting Planning Director
SUBMITTED BY: Norton N. Bonaparte, Jr., ICMA-CM, City Manager
SUBJECT: Comprehensive Plan Amendment; Property Rights Element; Ordinance
No. 4620; Second Reading
STRATEGIC PRIORITIES:
R Unify Downtown & the Waterfront
❑ Promote the City's Distinct Culture
N Update Regulatory Framework
F-] Redevelop and Revitalize Disadvantaged Communities
SYNOPSIS:
On September 13, 2021, the City Commission approved, on first reading, Ordinance No. 4620
amending the City's Comprehensive Plan to incorporate a Property Rights Element as required by
new State law. The attached revised Ordinance No. 4620 has been prepared to address a commend
made by the Florida Department of Economic Opportunity (FDEO) after reviewing the Ordinance
and the City's transmittal package and to address matters that Mayor Woodruff expressed at the
September 13, 2021 City Commission hearing. The Planning and Zoning Commission
recommended approval of the original Ordinance on September 2, 2021.
FISCAL/STAFFING STATEMENT:
No additional staffing anticipated if the Comprehensive Plan text amendment, is approved. It is
noted that a failure to protect private property rights in accordance with the requirements of
controlling Federal and State law can result in significant legal expenses being incurred by the City
as well as the potential for liability judgments under the array of constitutional and statutory (in
particular to Florida) legal remedies afforded to property owners. Based upon the FDEO's
statement described below, it may be prudent for City Commission agenda memorandums to
include a property rights analysis in each memorandum.
BACKGROUND:
During the 2021 Legislative Session, Florida's Community Planning Act was amended by the
passage of Committee Substitute for Committee Substitute for Committee Substitute for House
Bill Number 59 (initially codified as Chapter Number 2021-195, Laws of Florida) to require every
city and county within the State "to include in its comprehensive plan a property rights element."
(Section 163.3177(6)(i)l, Florida Statutes) The Community Planning Act requires the City to
maintain a comprehensive plan to guide future growth and development.
The City is committed to open and transparent decision-making, which is the best protection for
property rights. The right of citizens to contribute to City planning efforts and initiatives have been
advocated by the City. The City's planning practices and procedures, engage the public and this
participation leads to more thoughtful and sustained planning.
After the hearing on first reading of Ordinance No. 4620 by the City Commission, Ordinance No.
4620, was transmitted to the FDEO for compliance review by the FDEO in accordance with
controlling State law. The FDEO commented that the document referred to "planning and
development decisions" and not all "local decisionmaking" which is the precise wording of the
new State law. City staff has learned that the FDEO made the same comment to at least one other
jurisdiction although the property rights issues would seem to directly relate to planning and
development decisions involving real property. In any event, the revised Ordinance No. 4620
makes it abundantly clear that all local/City decisionmaking will take into account potential
impacts to private property rights. As noted above, the comments of the FDEO may make it
prudent for each City Commission agenda memorandum to include a property rights analysis.
Additionally, based upon Mayor Woodruff s comments at the last City Commission hearing,
Ordinance No. 4620, has been modified to address the City's processes and commitment to pre -
application conferences and participation in the Citizen Awareness and Participation Plan (CAPP)
process which will be consistently evaluated to ensure that it is adequately serving the needs of the
citizens of the City and to ensure that any person who desires to receive notices of meetings of
City agendas relating to land use matters and decisions shall be added to distribution lists such as
email lists and that, upon request, that public records are provided to apprise citizens of all pending
matters. The CAPP process is created in the City's Land Development Regulations (LDRs) and
may be considered for modification during a review and amendment process relating to the LDRs.
The statutory process now requires the City Commission to hold a second public hearing and
consider enactment of Ordinance No. 4620 upon second reading.
Please note that the version of Ordinance No. 4620 attached shows the edits made since first
reading. If approved by the City Commission, a clean version of the document will be executed.
LEGAL RFviF-w:
The Assistant City Attorney has reviewed this item and drafted Ordinance No. 4620.
The City Commission approved the first reading of Ordinance No. 4620 on September 13, 2021.
The City Clerk published notice of the 2nd Public Hearing in the Sanford Herald on September 26,
2021.
RECOMMENDATION:
Staff recommends the City Commission adopt Ordinance No. 4620, adopting a Property Rights
Element into the City's Comprehensive Plan.
SUGGESTED MOTION:
"I move to adopt Ordinance No. 4620
21
Attachments: M. Ordinance No. 4620
(2). Communication from the FDEO.